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The EEOC Proposes to Require Pay Data on EEO-1s: What Does This Mean for Nonprofit Employers?

The U.S. Equal Employment Opportunity Commission (EEOC) announced on January 29, 2016 that it proposes to require private employers with more than 100 employees, including nonprofit employers, to report employee compensation and hours worked, beginning in 2017.

Currently, employers subject to form EEO-1 reporting provide the sex, race, and ethnicity of their employees. The proposed rule would expand the Form EEO-1 to include pay data from employees' Forms W-2 and their total numbers of hours worked, according to employee job category, sex, race, and ethnicity. To maintain employee anonymity, the data would be grouped under 12 pay bands. Click here to view a sample EEO-1 reporting form showing the proposed changes.

In a press release announcing the proposed rule, EEOC Chair Jenny Yang stated that "[c]ollecting pay data is a significant step forward in addressing discriminatory pay practices." The EEOC says it will publish the aggregate data to aid employers in evaluating their pay practices to prevent pay discrimination. The EEOC will also use the information to enforce federal anti-discrimination laws.

The EEOC is accepting public comments on the proposed rule through April 1, 2016. The Commission is specifically asking employers for input with respect to reporting hours worked by salaried employees. If implemented, the proposal would be an additional administrative burden. Further, the EEOC has made clear that it intends to use such data in enforcement actions against employers, nonprofit and for-profit alike.

Nonprofit employers may wonder whether such pay data is vulnerable to disclosure to third parties through the Freedom of Information Act (FOIA). The EEOC already jointly collects EEO-1 data with the Office of Federal Contract Compliance Programs (OFCCP). For nonprofits subject to the OFCCP's jurisdiction, the pay data, like other EEO-1 data, would be kept confidential to the maximum extent permitted by law. For all others, the Commission would not release employer data to the public "prior to the institution of any [Title VII of the Civil Rights Act of 1964] proceeding … involving such information." Thus, it appears that pay data is no more or less vulnerable to disclosure under FOIA than current EEO-1 information. It remains to be seen whether plaintiffs' lawyers will find the newly collected compensation data to be a more attractive FOIA target.

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